Her Majesty the Queen - v. -, 2010 SKPC 51

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 051 Date: May 5, 2010 Information: 43398760 Location: Saskatoon _____________________________________________________________________________ IN THE MATTER OF AN APPLICATION PURSUANT TO S. 524 OF THE CRIMINAL CODE BETWEEN: Her Majesty the Queen - and - Alain Joseph Nelson Germain Appearing: Robin Ritter For the Crown Michel Thibault For the Accused DECISION ON APPLICATION D.E. LABACH , J INTRODUCTION

[ 1 ] The accused, Alain Germain, was served with a Summons to appear in Saskatoon Provincial Court on June 2, 2010 to answer to charges contrary to s. 380(1) (

a) and s. 334 (

a) of the Criminal Code . [ 2 ] On May 3, 2010, the Saskatoon Police Service obtained a warrant for the arrest of the accused on these charges pursuant to s. 524(1) of the Criminal Code despite the existence of the Summons.

The accused was subsequently arrested on the warrant and came before me on May 4, 2010 for a hearing to determine if the Summons should remain in effect, if the accused should be released on conditions, or if the accused should be held in custody. [ 3 ] Having heard submissions from both the Prosecutor and Defence Counsel and applying the applicable provisions of s. 524 of the Criminal Code , I have determined that the summons should prevail and the accused should be released from custody.

FACTS [ 4 ] In May, 2009, the Saskatoon City Police had begun an investigation into the accused in relation to allegations of fraud and/or theft from the Saskatchewan Indian and Gaming Authority in an amount exceeding $5,000.00. [ 5 ] Shortly after the investigation began, the accused gave a lengthy interview to a reporter from the Saskatoon Star Phoenix admitting that he had defrauded and/or stolen a considerable amount of money from the Saskatchewan Indian and Gaming Authority. [ 6 ] The accused and his lawyer also met with police investigators and gave a warned statement, again, admitting to defrauding and/or stealing significant monies from the Saskatchewan Indian Gaming Authority. [ 7 ] It took a considerable amount of time for the police to investigate the accused’s statements.

The offences were alleged to have occurred between January and May of 2009, but charges were not laid until sometime in April 2010. [ 8 ] After the investigation was concluded and charges laid, the accused was served with a Summons compelling him to attend Saskatoon Provincial Court, courtroom #4 on June 2, 2010 at 2:00 p.m. [ 9 ] After receiving the Summons, the accused contacted the main investigating officer in the case and advised that he had plans to travel to Mexico in and around June 2 for medical reasons. The accused had attended a Mexican clinic in 2007 for lap band surgery to address a weight problem.

His lap band required some adjustment and he was going back to this Mexican clinic for that intervention. As a result, the accused advised that he would not be able to appear in court on the June 2 nd date. He did however tell the officer that he would have counsel appear in court on that date on his behalf. [ 10 ] As a result of this information, the police became concerned that the accused was fleeing to Mexico to avoid prosecution on these charges. They made no attempts to verify whether the accused was attending in Mexico for medical reasons.

Instead, they made application to a justice for a warrant pursuant to s. 524(1) of the Criminal Code for the arrest of the accused and such warrant was granted on May 3, 2010. [ 11 ] After obtaining the warrant, the investigating officer contacted the accused and advised him that they would now be proceeding by warrant rather than the Summons.

The accused was surprised by this but made arrangements to turn himself in at the Saskatoon Police Service on May 4, 2010 so the warrant could be executed. [ 12 ] After speaking to the officer, the accused cancelled his Mexican surgery, his plane flight and his hotel arrangements.

[ 13 ] The accused attended at the Saskatoon Police Service on the morning of May 4, 2010, as agreed. He was arrested pursuant to the warrant and taken to Saskatoon Provincial Court where he appeared in custody on the 10:30 a.m. docket. [ 14 ] The accused had a dated criminal record containing a number of convictions. Of note were two convictions for making false statements under oath, one conviction for failing to attend court and three convictions for property related offences.

However, his last conviction for any kind of an offence was in August, 1999. [ 15 ] The Crown agreed that throughout the entire investigation the accused had been co-operative with the police. Defence pointed out that despite the lengthy investigation and the delay in laying charges, the accused never fled the jurisdiction. THE LAW [ 16 ] The applicable subsections of s. 524 that govern this application read as follows: s. 524(3) Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2), is taken before a justice, the justice shall . . . (

b) in any other case, hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any. . . . s. 524 (8) Where an accused described in subsection (3), other than an accused to whom paragraph (

a) of that subsection applies, is taken before the justice and the justice finds (

a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or (

b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). 524(9) Where the accused shows cause why his detention in custody is not justified within the meaning of subsection 515(10), the justice shall order that the accused be released upon his giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(

a) to (

e) with such conditions, described in subsection 515(4), as the justice considers desirable. s. 524(10) Where the justice makes an order subsection (9), he shall include in the record a statement of his reasons for making the order, and subsection 515(9) is application with such modifications as the circumstances require in respect thereof. s. 524(11) Where the justice does not make a finding under paragraph (8)(

a) or (b), he shall order that the accused be released from custody. ANALYSIS [ 17 ] Since the accused in this case was arrested on a warrant issued under s. 524(1), he was to be dealt with according to s. 524(3). Subsection (

a) of s. 524(3) does not apply in this case therefore by default, the accused is entitled to a hearing under s. 524(3)(

b) in

provincial court. [18] Such a hearing is governed by s. 524(8). At the hearing, it is the Crown’s responsibility to prove on a balance of probabilitiesone of the allegations set forth in subsections (

a) or (b). (See R. v. Parsons (1997) (NL CA), 124 C.C.C. (3d) 92(Nfld. C.A.); R. v. Edwards [2008] A.J. No. 444 (Alta. P.C.)) If they are successful in that regard then I must cancel the accused’ssummons and order him remanded in custody unless he shows cause why his detention is not justified within the meaning of s. 515(10). [19] In this particular case it is clear from the prosecutor’s submissions that the concern of his office and the police was that theaccused was going to flee to Mexico to avoid prosecution of these charges thereby contravening his Summons by not showing up for hisJune 2 court appearance.

There was no information placed before the Court that the accused had already contravened his Summons orthat he had committed an indictable offence after receiving his Summons. [20] Whether or not Mr. Germain was about to contravene his Summons is a question of fact. According to the information placedbefore the Court, Mr. Germain took it upon himself to contact the investigating officer and advise him that the court date set forth in theSummons conflicted with a trip that he had planned to Mexico for a medical treatment.

The officer did not come across this informationfrom other people and the accused was very forthcoming about his plans. [21] At no point in time did the accused advise the officer that no one would be showing up for him on the June 2 courtappearance. To the contrary, the accused had counsel in place and told the officer that his counsel would attend for him even though hehimself would not be there. [22] On

summary matters, counsel can appear on behalf of an absent accused (see s. 800 Criminal Code). On indictable matters,counsel can still appear on behalf of an absent accused if they file a designation of counsel (see s. 650.01 Criminal Code). Thus,however the Crown decided to proceed on these charges, accused’s counsel could appear for him in his absence and he would not be incontravention of his Summons. [23] I have also been advised that this investigation took some 11 months to complete. Throughout the investigation, the accusedwas very co-operative with the police.

At an early stage he gave them a statement as to what had occurred. When he was notified that awarrant had been issued for his arrest, he made arrangements to turn himself into the police station the following morning. The policewere satisfied with these arrangements and did not feel the need to go and arrest him.

The accused also cancelled his medical treatment,flight and hotel in Mexico when it became apparent that the police did not condone this trip and at no point in time did the accused leavethe jurisdiction or go into hiding despite how long it took the police to lay charges. [24] Finally, it is of some significance that neither the police nor the Crown have any evidence that the accused was not going toMexico for a medical intervention. Without some evidence contradicting the accused’s explanation for his trip, it is quite a stretch tosimply conclude that Mr.

Germain was fleeing the jurisdiction to avoid prosecution. [25] Considering all these factors, the Court is not satisfied on a balance of probabilities that Mr. Germain was about to contravenehis summons. [26] Therefore, pursuant to s. 524(11), I order that the accused be released from custody. [27] If I am wrong in my finding that the Crown has not proven that Mr. Germain was about to contravene his summons or thatnone of the other findings under s. 524(8)(

a) or (

b) can be made, then I would still release the accused on undertaking with applicableconditions as he has shown cause as to why his detention is not justified within the meaning of s. 515(10). [28] The accused has demonstrated that he would show up for court when required. He has a residence and family in Saskatoonand has counsel to assist him in this case. He has been co-operative with the police and has not left Saskatoon or gone into hiding whilethe investigation has run its course. He cancelled his medical trip and voluntarily turned himself in when requested. Despite having one

conviction on his record for failing to attend court, it is some 19 years old. [29] The accused has also satisfied the Court that his detention is not required for the protection or safety of the public or that ifreleased, he will commit a criminal offence or interfere with the administration of justice. By all accounts the accused has been very co-operative with the police including providing an inculpatory statement. The accused has a criminal record including offences ofdishonesty and that are property related however his last conviction was 11 years ago.

Over the 11 months that these matters have beeninvestigated, the accused did not commit any further offences. The offences that he is now facing are economic crimes rather thancrimes of violence. [30] Finally, the Court has no concerns on the tertiary ground. As Madam Justice Jackson said of s. 515(10)(

c) in R. v. Blind (SK CA), [1999] S.J. No. 597 (SK C.A.): 13 . . . In applying this clause it is not sufficient, as was done in this case, to find the Crown has a strong case, that the offence charged isextremely grave, and that a potentially lengthy term of imprisonment is in the offing, or, indeed, to list circumstances which coulddescribe any violent crime. More is required.

The clause poses the ultimate question in a case such as this, of whether in all thecircumstances, not just the circumstances surrounding the commission of the offence, detention is necessary to maintain confidence inthe administration of justice. . . . . 15 In considering all of the relevant circumstances, the hearing judge must not become so focussed on the gravity of the offence and thestrength of the Crown’s case as to overlook that there are no categories of offences for which bail is not a possibility.

There are fewcrimes of violence or murder where one could not say that the gravity of the offence, considered on its own, without regard for thepurpose of bail, justifies detention. There are also many cases where the strength of the Crown’s case appears, at the pre-trial stage, tobe overwhelming only to have it unravel as the trial progresses. It is also dangerous to place too much emphasis on the possibility of alengthy prison term as all serious crimes carry the possibility of such.

Giving undue weight to this factor becomes a means to startpunishment before conviction. 16 There has been a long history in this province of releasing persons charged with serious crimes once it has been determined that theywill appear to answer the charges against them and that they do not represent a threat to the safety of the public. . . . . [31] While the Crown may have a cogent case, the bigger question is whether detention is necessary to maintain confidence in theadministration of justice. It is interesting to note that when the charge was first laid, the police determined that Mr.

Germain’sattendance at court could be compelled by a Summons. Obviously they had no concerns on any of the three grounds justifying detentionotherwise they could have had him arrested at that time. Since issuing that Summons, the only thing that has changed is that informationhas been received from the accused that he was planning to travel to Mexico for some medical treatment.

There is no information thatthe trip was anything but a trip for medical treatment and falls far short of convincing the Court that the accused now needs to be held incustody to maintain confidence in the administration of justice. ________________________________ D.E. Labach, J